We provided the citations to
provisions of the Whistleblower Protection Act (WPA) that protect
federal employees when they disclose violations of the Civil Rights
Act, or participate in EEO proceedings. The mixed case statute, 5
U.S.C. § 7702,
allows victims of retaliation to raise their EEO and WPA claims in
federal district court, even if they never cited the WPA in their EEO
proceedings.

Section 11(c) of the Occupational
Safety and Health Act (OSH Act) remains one of the weakest laws on
the books. Although 1,729 workers complained about retaliation last
year, OSHA took enforcement action in only 23 (not counting
settlements). The other 1,706 whistleblowers would have no right to
pursue their claims with an administrative hearing or court action
under federal law. This gaping hole was the subject of my letter to Scientific American in 2010.

In health care, the Affordable Care
Act created a whistleblower protection for those who raise concerns
about compliance with Title I (the insurance mandate) but not for any
of the patient protection or quality care provisions. So, if you blow
the whistle on insurance companies not making all the money they are
entitled to – you are protected. If you blow the whistle on
hospital shortcomings that are actually killing patients – you have
no specific protection under federal law (although you would have protection
if you are raising concerns about Medicare or Medicaid fraud).

Food poisoning kills between 3,000
and 5,000 Americans every year, and in 2010, Congress passed the Food
Safety Modernization Act which protects workers when they raise
food safety issues enforced by the Food and Drug Administration. However,
lawfully prescribed medications kill between 60,000 and 100,000
Americans every year, and Congress has not created the same type of
protection for the employees of Big Parma. It is a most uneven web.

Lindsey Williams explained the
protections that workers have under the National Labor Relations Act
(NLRA). When workers act in concert to raise concerns about wages,
hours, or terms and conditions of work, they are protected from
retaliation, even if they have no union at all. She described a
recent NLRB General Counsel’s memorandum listing the types of
restraints some employers put in personnel policies or non-disclosure
agreements. If the policies could reasonably lead workers to believe
that they could be fired for protected concerted activity, then those
policies are unlawful.

For example, it is now unlawful for
employers to have policies that say:

“Never publish or disclose
[the Employer's] or another's confidential or other proprietary
information.”

“Never publish or report on
conversations that are meant to be private or internal to [the
Employer].”

Employees are prohibited from
“[d]isclosing ... details about the [Employer].”

“Sharing of [overheard
conversations at the work site] with your coworkers, the public, or
anyone outside is strictly prohibited.”

Workers are protected when they seek
to act in concert to raise safety and other workplace issues – to
the boss, to each other, or to the media. The time limit to file
charges with the NLRB is 6 months.

Matthew Fogg shared some reflections
on his experience blowing the whistle on race discrimination in the
U.S. Marshal’s Office. We agreed that women and minorities are
disproportionately represented among the victims of whistleblower
retaliation. Our materials provide case law supporting the contention
that women and minority whistleblowers are protected for deviating
from the stereotype of being submissive. The right to assert
compliance concerns is not a privilege limited to white men.

In the end, we had more material than
we could present in one hour. Our full materials are available at: